*1 OF APPEL- judge ble for the trial to have allowed the DISSENT TO REFUSAL PETITION FOR put prosecuting attorney State to on the LANT’S REVIEW DISCRETIONARY proper personal witness who had knowl- edge notwithstanding of the fact that CLINTON, Judge, dissenting. judge granted fact that the trial Kalmbach jeopardy claim rejecting appellant’s immunity, testify “use” she still refused to “where, as the court of found that course, for the State. Of such witness charge state’s in the instant subject would have been to the usual rules and deliv- possession with intent to deliver govern cross-examination of a witness. separate quanti- ery required proof of two reasons, respectful- all For above cocaine, can no double there ties of ly majority’s holding dissent to the that the the statute allows jeopardy issue because judge forcing did not err in Kalmbach instance.” prosecution for each Diaz testify her refusal for the verbalize (Tex.Cr.App.1988). jury’s presence. State intimating our own deter- Without what be, grant peti- might
mination I would significant tion to this novel and consider question jeopardy law. not, majority respect-
Because the does fully dissent. DIAZ, Appellant,
Elio Torres Texas, Appellee. STATE 0068-89, Nos. 0069-89. Autry JONES, Appellant, Gene Texas, of Criminal
En Banc. Texas, Appellee. The STATE of No. 038-89. Sept. 1990. Texas, Criminal
En Banc.
Sept. Burnett, (Court-ap-
Catherine Greene Houston, appellant.
pointed appeal), Holmes, Jr., Atty., Dist. B.
John Roe, Mike Asst. Dist. F. Carroll and
John Huttash, Houston,
Attys., Robert Austin,
Atty., for State. *2 Gradel,
Robert Lampasas, J. lant. Eads,
Arthur Atty., C. Dist. and James T. Russell, Belton, Atty., Asst. Dist. Robert Huttash, Austin, Atty., for the State.
OPINION ON APPELLANT’S AND STATE’S PETITION FOR DISCRETIONARY REVIEW WHITE, Judge.
Appeal is taken from a conviction for
driving
intoxicated,
while
third offense.
6701Z-l(e),
finding
V.A.C.S. After
pellant guilty,
the trial court found
offender, V.T.C.A.,
lant to
abe
habitual
12.42(d),
Penal Code
and assessed his
§
punishment
twenty-five years
at
imprison-
Department
ment in the Texas
of Criminal
Justice, Institutional Division.
appellant’s petition
In
for discretion
review,
ary
argues
he
that the sentence of
twenty-five years exceeded the maximum
allowed for this
Appellant
offense.
bases
argument
on the contention that
12.42 cannot be used to enhance this
§
Appellant
offense.
ap
asserts that
12.42
plies only to offenses enumerated as felo
Code,
nies within the Penal
not Art.
6701Z-l(e)because it
designated
is not
as a
felony
punishment range
and its
is less
than
degree felony.
that for a third
disagreed
ap
pellant,
“punishment
and held that
for driv
intoxicated,
offense,
ing
third
while
by proof
12.42
enhanced
previous
one or more
convictions for a felo
ny
driving
offense other than
while intoxi
cated. ...
district court did not err in
overruling
the motion to
the en
paragraphs.”
hancement
Jones v.
(Tex.App.-Austin,
penitentiary possible punishment, time as a Autry hereby gives Jones and notice of degree it would be considered a third felo- appeal in the above case. Defendant re- and, therefore, ny subject would to en- be quests transcript the Court order a by proof prior felony hancement of two proceeding, poor as is too defendant 12.42(d). Childress, convictions under § transcript.” pay to for said S.W.2d, at 365-66. intoxicated, 26, 1988, driving Because while third On October the state sent a offense, 1(e), V.A.C.S., copy response appellant’s carries certified of its to 6701Z— brief, penitentiary possible punishment, time as a appellant. brief to the pointed appellant’s we hold that it is also considered a third state out the defect in degree 28, 1988, felony, subject and is also en to notice of On October by proof felony prior fifty-one days hancement of two after he was sentenced and 12.42(d). Childress, forty-six filing convictions under days after his invalid notice appeal, appellant and filed an amended no- Phifer (Tex.Cr.App. appeal complied The trial court acted Rule tice of which with correctly 40(b)(1)by specifying when it denied motion the matters raised in quash paragraphs pretrial stating to the two enhancement his the trial motion and order; Tex.R.App.P., judgment appealable 1. Rule sets out that: but if or other judgment upon plea judgment was rendered his A shall not be affirmed or re- appeal guilty V.A.C.C.P., versed or an irregularities, dismissed for defects or or nolo contendere ursuant to Art. appellate procedure, either of punishment and the assessed does substance, allowing form or without a reason- by punishment recommended not exceed able time to correct or amend such defects or irregularities provided prosecutor agreed by to the defendant may the court make no attorney, prosecute in order to enlargement filing of the time for the tran- nonjurisdictional a defect or error script except and statement of facts entry prior plea of the that occurred (c) paragraph except of Rule that in granted shall state that the trial court filing transcript criminal cases late specify permission or shall that those permitted facts be statement of showing on written motion." matters were raised appellant may that otherwise the be case, appellant’s pretrial motion In the instant deprived effective assistance of counsel. defect, wit, nonjurisdictional a defect raised a Tex.R.App.P., Rule sets out that: allegations of his indict- in the enhancement if it shows "Such notice shall sufficient ment. the desire of the defendant to from granted permission
court
appeal. peal
him
failed to
mandatory
with the
28, 1988,
On October
both briefs were
requirements
40(b)(1),
for-
of Rule
it had no
warded
the District Clerk to the Third validity
regard
non-jurisdictional
to the
facts,
Appeals.
Court of
From these
it is
appellant’s pretrial
defects raised in
motion
apparent
September 13th
agree
indictment. We
invalid,
notice of
that he filed
appellant
preserve
the state that
failed to
request
with the
to file
any non-jurisdictional
defects for his
an amended
and that he peal,
but not because the Court of
request
did not
an extension of time “rea-
jurisdiction.
lacked
sonably explaining the need for such exten-
Once a notice of
has been
Tex.R.App.P,
41(b)(2).
sion.” See
*4
filed in a
the
Appeals
Court of
has
Appeals
The Court of
held because
jurisdiction
obtained
of that cause. Art.
“promptly
lant
corrected” the defect after V.,
Constitution,
juris
Texas
confers
attention,
it was called to
appeal
his
the
penalty
diction of all non-death
on the
cases
properly
Jones,
before that court.
su-
appeals.
of
recog
courts
This has been
pra,
Appeals
at 331. The Court of
went on
by
appeals, though
nized
the courts of
explain
to
distinguishable
that this case is
disagreement among
there is some
the low
from a case where a
completely
defendant
State,
In Campbell
er courts.
v.
747
fails
appeal.
to file a written notice of
(Tex.App.
Dist.],
S.W.2d 65
[1
- Houston
Appeals
Court of
asserts
that Tex.R. 1988),Justice Smith held that the
of
App.P.,
“may
employed
Rule 83
to cor- Appeals
jurisdiction
though
had
even
rect
ap
a defect
notice
written
of
appeal
fully
defendant’s notice of
did not
peal,”
upon
and relies
the cases of Robert
Appellate
with the Rules of
Proce
State,
(Tex.App.
son v.
We that neither Robertson the Court of once a notice of Contra, authority appeal nor Shute are for the of has been filed. Johnson v. Appeals’ holding scope on the (Tex.App. of - Houston State, 1988); simply Dist.], Both eases stand for the rule that a 775 Jackson [14 jurisdiction Dist.], court of 422 (Tex.App. without to S.W.2d [14 — Houston 1989). appeal hear an where an invalid notice of (in appeal had been to the trial court However, disagree we with Justices cases, merely gave both the defendants an Smith and Hecht on the issue of the extent court). appeal oral notice of to the trial right appeal of a defendant’s once he has Robertson, 836; Shute, supra, at su- ap- filed his notice and of that pra, Having at 97. found that the Court of peal has been conferred. Rule is a Appeals’ decision this matter was with- regulates rule. restrictive It the extent of Court, support out authoritative from this grounds upon which a defendant can we of argu- turn the merits the state’s regulation method ment. nature of the notice filed a defendant. appeal If The state contends notice he wishes to a matter which is appeal only appellate juris- nonjurisdictional pri- invoked the in nature or occurred entry plea, diction to consider to the of his then he must jurisdictional requirements the limited issues of defects conform to the of the statute arising entry his what or matters after the and include within plea, appel- grounds appeal not the merits of are and the fact that he lant's permission of pre-trial lant’s motion. The state bases has received the argument unequivocally appeal manda- those matters. See note on the court 40(b)(1). similar result tory language of Rule The state infra. This Court reached a reviewing under former alleges that since when precursor 40(b)(1). appellant to Rule on the issue of whether Morris v. (Tex.Cr. S.W.2d perfected his matter raised in App.1986). case, In the instant appellant pre-trial judg- motion is reversed. The failed to file a notice which would ment of the trial court is affirmed. permit him to nonjurisdictional complained
matter of here. CLINTON, STURNS, JJ., MILLER and dissent. argues
The dissent
that Rule 83
gives
Appeals power
permit
the Court of
TEAGUE, Judge, dissenting.
appellant
to amend his notice of
out
although
I first
out that
I continue
time,
and relies on footnote 2 in Miles v.
I
subscribe
the view that
set out
(Tex.Cr.App.
780 S.W.2d
at 216
Childress
dissenting opinion
filed
We note that footnote 2 in Miles
(Tex.Cr.App.1990),
was dicta in that
and do not find that
momentarily
majori-
concede defeat to the
controlling
it is
in the instant case.
V.T.C.A.,
ty’s holding that
Penal Code
Appellant argues the case of Evitts
12.42 can be used to enhance a criminal
Lucey,
469 U.S.
105 S.Ct.
in,
offense that
is set out
not the Penal
(1985)
authority
L.Ed.2d 821
for us sanc
*5
State, but, instead,
Code of this
the civil
tioning
Appeals’
the Court of
decision
statutes of this State.
waive the
appeal.
defect
his notice of
dissenting opinion
I
find Evitts to be
express
We
file this
distinguishable.
In
Evitts,
my disagreement
majority’s
the defendant
with the
hold-
timely
filed a
written
appeal,
ing
appeals
juris-
notice of
but failed to file
that the court of
a “State
had no
Appeal”,
designed
Jones’,
ment of
which is
accept
Autry
to as
diction to
Gene
hence-
sist the
of
processing
the
appellant,
forth
appeal,
amended notice of
Evitts,
appeal.
records of an
In
the Court which
shows on its face that
amendment
specifically points out
compliance
that
appellant’s origi-
the defect that existed in
jurisdictional.” Evitts,
rule “is not
nal notice of
has
If
been cured.1
supra,
at 832. In the
compli
instant
carefully
one
reads all of this Court’s 7-2
necessary
ance with Rule
for a
v.
Miles
decision of
S.W.2d 215
statutory
defendant to avoid
restrictions on
(Tex.Cr.App.1989), especially footnote 2
right
appeal.
his
216,
page
found on
believe he will con-
clude
today’s majority
as
have done that
We hold that
the Court of
in the
opinion, which does not even mention that
instant case should not have entertained
case, expressly
opinion.
conflicts with that
appellant’s appeal
nonjurisdictional
of a
Tex.R.App.P.
matter.
Rule 83 does not
of
record
this cause reflects that this
cure this defect.
disposed
case was
of in the trial court
plea bargain agreement.
The decision of the
to a
Court of
on
driving
exchange
plea
guilty
appel-
the issue
whether
for a
of
of
while intoxi-
from
cated,
offense,
lant,
felony
pleas
third
is a
that can be
and
of true to the enhancement
12.42(b)
indictment,
provisions
enhanced under
allegations
of
of the
the State
§
agreed
is affirmed. The decision
judge
to recommend to the trial
appellate
1. Texas
courts exist in order to cure
discretion or a valid restrictive statute.” Carter
deprived
(Tex.Cr.App.1983).
parties
S.W.2d 468
errors that have
either of the
They
a lawsuit of a fair trial.
do this
decid-
September
I also
out that effective
Therefore,
ing appeals.
appellate courts must
adopted
when this Court
Texas Rules of
open
parties
be
to the
so that trial court errors
Procedure,
Appellate
repealed
pro
the Court
may be corrected or cured.
It is now without
44.02, V.A.C.C.P.,by operation
viso of Art.
question
appeals
the courts of
have the
le,
(§§
law under former Art. 181 V.A.C.S.
1-7
ordinary
jurisdiction to hear
cases on
criminal
re
since transferred to Government Code and
V,
148, 2.04(b),
direct
to those courts. See Article
pealed
Leg.,
Acts
70th
ch.
4.03,
Texas Constitution.
V.A.
Also see Art.
p.
proviso part
of Art.
jurisdiction
40(b)(1),
It is also true that
Tex.R.App.Proc.
C.C.P.
"[o]nce
now found in Rule
invoked,
(Tex.
appellate
Padgett
court is
exercise of it’s
Also see
reviewing
only by
Cr.App.1989)
functions is limited
it’s own
years’
sentence of 25
confinement in what
to take advantage of a “technicality” in the
is now the
Department
Texas
just
law is
Criminal
not
reserved for defendants.
Justice, Institutional Division. The trial
The record makes it obvious that after
judge
arguments
heard
on
mo-
receiving
brief,
copy
a
of the
quash
tion to
allegations
enhancement
lant’s counsel then became aware of the
cause,
of the indictment in this
and over-
original
omission in the
appeal,
notice of
Thereafter,
ruled same.
judge
trial
after which he filed an amended notice of
record,
alia,
stated into the
inter
that “ex-
appeal, in which he set out
“magic”
cept
pre-trial motions,
as to
which have
40(b)(1).
words of Rule
here,
been made
permission
or with
of the
appeal, again given
On direct
the facts of
Court, there would be
appeal,”
and ac-
cause,
hypertechnical fashion,
cepted appellant’s plea
guilty
pleas
argued
State
appeals
that the court of
did
of true. The
judge
trial
assessed
not have
appellant’s ap-
over
punishment
lant’s
years’
at 25
confinement peal because of the
above defect
in what is now the
Department
Texas
original
notice of
The Third Court
Justice,
Criminal
Institutional Division.
Appeals, however,
in its
of Jones
Thereafter, appellant gave timely
written
(Tex.App.-Austin
S.W.2d 330
appeal,
notice of
1988),
but same was defective
relying upon
Tex.R.
because it failed to set out
App.Pro.,
therein that the
rejected the State’s contention.
judge
appellant permission
had
It
ruled: “The
properly
before
ruling
motion this
Court.” The court of
also
Thus,
indictment.
as a
held:
employed
matter
“Rule 83
to correct
law,
counsel was
giv-
appeal,
ineffective
defect in the written notice of
but
ing of the written
cannot and should not
be used to excuse
*6
under
many, many
any
this Court’s
the failure to file
appel-
cases
notice whatsoever.”
Thus, finding
lant
in
granted
appellant
will
the future
that
timely
be
an out-of-
had
Thus,
actually
time
appeal,
this is
another one of
the
of
appeals
court of
“pay
although
those
me now
ruled that
pay
or
me later” cases.
original
lant’s
appeal
notice of
compare
See and
was defec-
Evitts v.
469
Lucey,
U.S.
tive
it
because did not state therein
(1985),
105
that the
S.Ct.
invoked.” Miles v. at 610 Texas, Appellee. The STATE of Boyd’s tice concurring opinion). No. 1147-89. What majority opinion does in this cause actually supports what I stated in Texas, Court of Criminal the dissenting opinion I filed in Shute v. En Banc. State, supra, that when it mixing comes.to Sept. appellate criminal appellate law with civil law, Rudyard Kipling probably said it best “Oh, “The Ballad of East and West”: East, West,
East is and West is and never
the twain shall supports meet.” It also
what was said about this Court over 75
years ago: The Texas Court of Criminal superstitious has “an almost re-
gard for technicalities of a kind which be- Johnson, Sinton, Joel B. appellant. for long ark, rubbish of Noah’s rather jurisprudence than to the enlightened of an Bridges, Atty., Thomas L. Dist. Patrick age country. The Texas Court of Flanigan, Sinton, L. Atty., Asst. Dist. distinction, Criminal enjoys the we Huttash, Austin, Robert Atty., believe, being one of the foremost wor- the State. shipers among appellate American courts fetish, technicality glad of the but we are
to know that many courts of states
refuse to follow such prece- decisions as OPINION ON APPELLANT’S PETITION
dents.” Journal American Institute FOR DISCRETIONARY REVIEW of Criminal Law & Criminology 179-180. Please note that the above words were PER CURIAM. spoken neither written nor but were written in 1912. I Appellant believe that this charged possession improve image, Court should strive to its fifty more than five but less than existing years. even after for almost pounds of marihuana. He filed a motion to suppress challenging legality of the Therefore, respectfully dissent to the discovery search which led to the of mari *8 majority opinion’s holding that the defect huana. After the trial court overruled the original of omission in the motion, appellant pled nolo contendere and jurisdictional procedural, and not pursuant plea bargain was sentenced to a cannot be cured to Rule 83. In eight years, probated, and fined so, doing I acknowledge the words of $5,000.00. appealed He the search issue wisdom, many adopted of which I have and the affirmed. Van dissenting opinion, that Justice Cohen (Tex.App. natta v. uttered for the First Court of -Corpus Appellant pe Christi filed a which, by refusing Jiles v. discretionary tition for review which we petition discretionary review granted to consider whether the search cause, implicitly this Court also proper. proved what stated. Justice Cohen
We have reconsidered the issue raised appellant’s petition and find that for discre- tionary improvidently granted. review was express We on the Court of